78
JUDGE LASKY was holding the hearing under seal, closing the courtroom. Duncan would’ve preferred to be in open court, so that no matter what happened there would be a public record out there, but he’d already used up too much of the judge’s patience to put up a fight about it.
Duncan arrived a few minutes before ten. The judge’s deputy was chatting with the court reporter; two court officers stood near the door through which they would bring Rafael up from the holding cell. Duncan hadn’t made any attempt to see Rafael; he assumed the guards wouldn’t let him. If they did, he didn’t know what Rafael’s reaction would be: his former client had told Duncan in no uncertain terms to get lost, and he was sure Rafael had no idea what was going on. Duncan figured he’d have plenty of time to explain if he pulled this off, and if he failed, then it wouldn’t really matter.
He walked through the empty rows of seats, then past Steven Blake and Leah Roth. Blake nodded to Duncan, one old pro to another, while Leah ignored him completely. Duncan sat down in the front row, directly behind the defense table.
This was the worst time of all, the couple of minutes where nothing was happening, just before the battle was joined. Duncan had been thrown out of sleep at six a.m. sharp, well before his alarm was to go off, instantly completely awake. His nerves were thrumming, his hands clammy. He took a bottle of water out of his bag and had a large sip, though the dryness in the back of his throat returned seconds later.
Robert Walker came in, sat down at the defense table in front of Duncan without acknowledging his presence. Duncan smiled at the thought that he’d managed to have every possible side in the case—judge, defense, prosecution, and witness—all pissed at him at once. It was an accomplishment of sorts. Here he was, an unemployed, clientless lawyer, with nobody in his corner. There was no safety net, no next time if he failed.
Finally Judge Lasky entered from the back of the courtroom, everybody obediently standing as he made his way to the bench. The judge peered out at each of them in turn, like he was silently taking attendance. “Let’s bring the defendant in,” Lasky said to the court officers, and a few moments later Rafael was brought to the defense table.
To Duncan’s surprise, the judge then turned not to him, but to Steven Blake. “Mr. Blake, I assume you would like to be heard on your motion before we begin?”
Blake readily agreed, making his way into the well of the courtroom, buttoning his suit jacket as he did so. Duncan also stood, not understanding what was going on. “Your Honor,” he said, “I’m not aware of any motion filed by Mr. Blake.”
“Did you not serve a copy of your motion on Mr. Riley?” Lasky asked Blake.
“I didn’t know that Mr. Riley had opened his own law practice, Your Honor,” Blake said. “We served the defense counsel of record.”
“Mr. Blake certainly knows how to find me, Your Honor,” Duncan replied. “We worked closely together for a number of years, and he’s contacted me at home on numerous occasions.”
“Seeing as this morning is all about indulging you, Mr. Riley, I’m inclined to indulge Mr. Blake, though he certainly should have served you with papers. I don’t want to postpone this hearing, so, Mr. Blake, why don’t you summarize your argument?”
“Certainly, Your Honor. We think there are several reasons to quash the subpoena of Leah Roth. As a procedural matter, we think it was entirely inappropriate for Mr. Riley to file a subpoena when he is not representing any party in the case and he is not maintaining an actual legal practice. More substantively, Ms. Roth simply has no relevant information to impart regarding this case. And if we assume for the sake of argument that she did have relevant information, the only way that Mr. Riley would know about it is through privileged communications, and his questioning her based on what he learned in those conversations would violate not only the attorney-client privilege but also my firm’s work-product privilege. Lastly, we believe that Mr. Riley has served this subpoena out of, frankly, personal animus, and that the court should not allow him to use the judicial process to work out his own private agenda.”
Duncan was alarmed to see that the judge was paying close attention to Blake’s argument. “So in your view,” the judge said, “Mr. Riley could be breaking privilege simply by asking a question where he was drawing on his knowledge of privileged matters?”
“Absolutely,” Blake said. “If he knows the information through privileged communications, it hardly matters whether he is relaying it himself or doing it through the questioning of a witness, especially when the witness in question is a former client. Clients have the right to expect that their lawyers won’t turn around and use their confidences against them.”
“But the attorney-client privilege is not absolute,” Lasky said. “And it does not extend to future criminal conduct, which I believe is what Mr. Riley is alleging, at least in part. I couldn’t help but notice, Mr. Blake, that your motion was silent regarding your firm’s positional conflict in this matter. It seemed a curious omission.”
Blake appeared confused by the question, though Duncan wasn’t buying it. “In what sense, Your Honor?” Blake said.
“Your argument then suggested the Roths had some interest in the outcome of this case. The conflict was because the victim of the shooting was in effect an employee of Roth Properties, and that your firm was therefore constrained from investigating the recent allegations in the press that Fowler was involved in improper evictions at Riis as part of Mr. Nazario’s defense. That does at least lend some credence to Mr. Riley’s claim that there is a connection between Roth Properties and this case.”
Duncan was trying to catch up. This was the first he knew about how Blake had gotten the firm out of representing Nazario. “Here’s the way I see it,” Lasky continued. “I don’t know right now whether this proceeding is going to prove a waste of time. We will all know soon enough. Once that has become clear, I will take appropriate action. If it turns out that Ms. Roth’s time has been wasted here today, well, I’m sorry for that, but I can assure her that Mr. Riley will face steep consequences for having wasted it.
“That still leaves privilege issues. You, Mr. Blake, will be free to object to questions that you think implicate attorney-client privilege, and to counsel your client, within limits, if you think privilege is implicated by her answer or potential answers. If I ever contemplate unsealing the transcript of today’s proceedings, I will first allow you to note any privileged material that you would like redacted. If I find that this hearing has been meritless, I will strike the proceeding from the record in its entirety and no transcript will exist. Fair enough, Mr. Blake?”
Blake looked unhappy but resigned. “I appreciate Your Honor’s efforts to protect my client’s interests, but the easiest way to do so is simply to quash this subpoena. There’re also the procedural issues—particularly that Mr. Riley does not actually represent a party in this case.”
“Mr. Riley appeared before me as an officer of the court alleging a fraud. I think he is entitled, and I am obligated, to find out whether there is merit to that claim. If there’s not, I assure you it will be dealt with. Mr. Riley, call your witness.”
LEAH ROTH was dressed in a black suit, the jacket buttoned, a steel gray shirt underneath. Her hair was pulled back, adding to the austerity of her appearance. Her thin face appeared almost gaunt, her paleness turned to pallor. She looked her wealth, Duncan thought, but she did not look well.
After she’d been sworn in, Duncan stood and made his way to the podium. He started with some basic background questions, necessary to establish who she was, where she worked, and what she did there, as well as the roles in the company occupied by her brother and father. Leah answered quickly and crisply, doing a fairly convincing show of boredom.
“Roth Properties was the developer of a building project called the Aurora Tower, correct?” Duncan asked.
“That’s right.”
“Can you describe the Aurora Tower?”
“It’s a thirty-six-story high-end condominium development.”
“Have there been problems during its construction?”
Leah shifted in her seat. “There was an accident, yes, if that’s what you’re referring to. Three workers were killed, and others injured, due to a partial collapse.”
“Were you the Roth Properties executive supervising the Aurora’s construction?”
“My brother was in charge of the project, though as the developer we do not supervise the actual construction. That’s the general contractor’s job.”
“Do you have an understanding as to what caused the accident?”
“I’m not an engineer.”
“Understood. But please answer the question.”
Leah’s mouth tightened slightly. “My understanding is that the subcontractor who was responsible for pouring the concrete did not undertake standard safety measures. As a result the concrete wasn’t properly supported, allowing for the collapse.”
“Who was that subcontractor?”
“Pellettieri Concrete.”
“Who was in charge of the company?”
“Jack Pellettieri,” Leah said, spitting out the name.
“Mr. Pellettieri has disappeared, correct?”
“Apparently so,” Leah said, shifting in her seat. Duncan guessed she was braced for him to bring up Pellettieri’s death. He wasn’t going to do so, however: he couldn’t prove that Pellettieri was in fact dead, and raising it without proof risked making him look crazy. There was enough danger of that as it was.
“Is it your understanding that Mr. Pellettieri was skimming money from the Aurora construction?”
“Unfortunately, yes.”
“How was he able to do so?”
“He did a few things. Billing for work that wasn’t performed, no-show jobs.”
“In essence, he was stealing money from your company, correct?”
“Yes.”
“Was anyone else involved in this skimming?”
Leah hesitated for a moment, Duncan thinking she was worried about a trap. “I don’t know,” she said. Okay, Duncan thought, so you are going to lie under oath. He’d assumed she would, but hadn’t been sure. Now the question was whether he’d be able to expose it.
“At the time of his disappearance, Mr. Pellettieri was under investigation by a grand jury, correct?”
Leah glanced over at Blake, apparently expecting an objection. “I have heard rumors to that effect,” she said. “But I obviously don’t know whether or not they are true.”
“Your Honor,” Blake protested, “what does this line of questioning about the Aurora possibly have to do with the murder of Sean Fowler?”
“It’s a fair question, Mr. Riley,” Judge Lasky said, peering down at Duncan. “Tie it together or move on, counsel.”
“Certainly,” Duncan said to the judge, before turning back to Leah. “Do you know who Sean Fowler, the victim in this case, was?”
“I never met him, but I know he did security work for our company.”
“When do you first recall hearing of Sean Fowler?”
“I believe it was the day after he was killed. It happened on our site, and he was working for us at the time, so obviously we heard about it, were concerned.”
“Your brother had never mentioned Mr. Fowler to you?”
Leah hesitated slightly, Duncan not sure if it was sincere or a pose. “I don’t believe so,” she said.
“Were you aware that Mr. Fowler worked at the Aurora?”
“It doesn’t surprise me. His employer does virtually all of our security work.”
“Mr. Fowler was involved in Mr. Pellettieri’s skimming from the Aurora, correct?”
For the first time Duncan saw a little fear in Leah. “I don’t know the details of Mr. Pellettieri’s skimming,” she said after a moment. “As I said, I believe it was being investigated at the time of his disappearance, but I don’t know what conclusions were reached. You’d have to ask the district attorney’s office.”
“You are aware, are you not, that your brother knew about Mr. Pellettieri’s embezzling?”
“I don’t know anything of the kind,” Leah said coldly.
“As you sit here today, Ms. Roth, you know that your brother was actually involved in the skimming, correct?”
Leah’s anger appeared genuine enough. “That’s an outrageous accusation.”
“Are you denying it?”
“I am absolutely denying it,” Leah said. Duncan thought she probably seemed convincing to someone who didn’t know she was lying.
“Did there come a time when you learned that your brother was being blackmailed?”
“No.”
Duncan tilted his head skeptically. “It’s your sworn testimony that you had no knowledge your brother was being blackmailed?”
Leah look was filled with contempt. “I understood I was under oath the first time I answered the question.”
“Isn’t it true, Ms. Roth, that Sean Fowler was killed because he was blackmailing your brother?”
“That’s an absurd question.”
“Please answer it, rather than giving your opinion on its merits.”
“I thought I had answered it by calling it absurd. No, it’s not true.”
Duncan wasn’t going to get anywhere by pressing the point. She’d made her denials, and that was what he was going to have to work with. It was time to shift tacks. “How did you first hear of Rafael Nazario?” he asked.
“I guess when I read in the paper about his getting arrested for murdering Mr. Fowler.”
“Didn’t you and I have a conversation about Rafael Nazario prior to the murder?”
Leah’s confusion looked real enough, Duncan thought. “Why would we have talked of Mr. Nazario?”
“I was handling his eviction case. You and I discussed it briefly the first time we spoke, and then at length the second time we spoke.”
Blake stood. “Your Honor, clearly the conversations in question were privileged.”
“I’m not disclosing anything relating to my representation of Ms. Roth or her company,” Duncan protested. “Just that she and I discussed, in broad strokes, my representation of Mr. Nazario.”
“I’ll allow it,” Judge Lasky said.
“I vaguely recall your mentioning something about a pro bono case,” Leah said. “All I remember about it was that you seemed to feel it was too small-time for you.”
All right, Duncan thought, left myself open for that one. He smiled slightly at Leah, acknowledging the blow. “Once Mr. Nazario had been accused of this crime, my then firm sought permission from you as to whether or not we could keep his case, correct?”
“That clearly gets into work product,” Blake objected.
“I’m going to allow it, at least in general terms,” Lasky said. “Especially in light of the conflict issue that arose, I think any work-product privilege has been vitiated.”
“Yes, I had a conversation with Mr. Blake about it.”
“And you originally gave Mr. Blake permission for his firm to take the case?”
“Yes, I did.”
“You instructed my firm to try to reach a quick plea bargain for Mr. Nazario, correct?”
Leah glanced over at Blake. “My only concern was that I didn’t want a lot of extraneous bad publicity to hobble the work we were doing at Jacob Riis. But I certainly didn’t offer any instruction as to legal strategy. Nor did I suggest that the firm do anything that wasn’t in your client’s best interest.”
“Did there come a time when you told Mr. Blake that you no longer wanted his firm to represent Mr. Nazario?”
Leah was growing increasingly uncomfortable, the pauses longer between each answer. “Yes,” she finally said.
“Why?”
“As Mr. Blake alluded to earlier, there were allegations regarding the security staff who were working at Jacob Riis relating to evictions that were taking place. Mr. Blake expressed concern about whether his firm could investigate that aspect of the case without the risk of creating a conflict with our company. If evidence emerged showing that Mr. Nazario’s eviction had been set up by security guards in our employ, he could potentially have had a lawsuit against us, for example.”
Bulllshit, of course, but not bullshit Duncan could disprove. “Do you have an understanding of the motive that has been alleged for why Mr. Nazario would want to kill Mr. Fowler?”
“I understand that it concerns the eviction.”
“Specifically, that Mr. Fowler had claimed to catch Mr. Nazario smoking marijuana, which led to the Nazario family facing eviction?”
“I don’t recall the details, but that sounds right.”
Duncan entered Candace Snow’s article about the Riis evictions into evidence, then presented a copy to Leah. “Did you read this article when it was published?”
“Yes,” Leah said. Duncan thought it was the first truthful answer she’d given in some time.
“Were the private security guards at Jacob Riis planting drugs on people?”
“Not to my knowledge.”
“The fewer existing residents your company had to move back into the project, the more room there’d be for market-rate tenants, true?”
“It’s a good deal more complicated than that,” Leah said, shifting slightly in her seat. While Duncan knew this issue wasn’t directly relevant to Fowler’s murder, it was one where Leah had little plausible deniability.
“Did your company, Roth Properties, know that security guards were looking to cause people to be evicted from Jacob Riis?”
“I certainly did not. I can’t speak for my entire company. And I have no personal knowledge that our security guards did anything inappropriate. Just because something is printed in the newspaper doesn’t make it true.”
“After this article appeared, did you investigate the allegations in it?”
“I did not, no.”
“Did your company?”
“Not that I know of.”
“You didn’t think it was worth checking out?”
“We’ve had previous dealings with this particular reporter,” Leah said. “We know her to be unreliable and inaccurate.”
“The newspaper article quotes Riis residents accusing Mr. Fowler of being one of the security guards who planted drugs on people in order to secure their evictions?”
“I think that’s right.”
“Would you like a chance to review the article?”
Leah glanced over at the judge before looking back at Duncan. “There are accusations regarding Mr. Fowler, yes,” she said with a slight shrug.
“The city announced it was investigating the evictions in which the security guards were involved, correct?”
“I believe they did, though there haven’t been any charges or anything out of it.”
“In fact the city has suspended the pending evictions where the security guards had a role?”
“While they were looking into it, yes. I don’t think any final decision has been made.”
“Have you ever met Chris Driscoll?”
“Not that I recall.”
Duncan wondered if that could be true. He supposed it was possible: there was no reason to think Leah had actually sat down with Driscoll and hatched out a plan. “You do know that Chris Driscoll worked at the Aurora as a security guard, right?”
“Yes.”
“You’re aware he is the state’s sole witness against Mr. Nazario?”
“I’m aware he saw the shooting,” Leah said. “I don’t know whether your characterization is correct.”
“Did you ever discuss Sean Fowler with Mr. Driscoll?”
“Like I said, to the best of my knowledge I’ve never had a conversation with Mr. Driscoll about anything.”
“But you do know, as you sit here today, that Chris Driscoll is not telling the truth when he claims to have seen Rafael Nazario shoot Sean Fowler?”
“I do not,” Leah said without hesitation. It wasn’t obvious by looking at her that she was lying, and Duncan assumed the judge didn’t think he was getting anywhere.
“Do you know a man named Darryl Loomis?”
“He’s the head of a private security company that does a lot of work for us. Sean Fowler was one of his employees.”
“Did you ever discuss my representation of Mr. Nazario with Mr. Loomis?”
“Yes. Your firm asked whether we objected to your representing Mr. Nazario on the murder charges and I in turn raised the issue with Mr. Loomis, given that Mr. Fowler was his employee.”
“You and Darryl Loomis ever discuss the fact that Sean Fowler was blackmailing your brother?”
Leah leaned her head back, as if repulsed by the question. “Of course not.”
“Isn’t it true that you and Mr. Loomis came up with a plan to kill Mr. Fowler and frame Mr. Nazario for the crime?”
“Absolutely not,” Leah said immediately, maintaining eye contact with Duncan.
“Are you aware that Darryl Loomis arranged to have Sean Fowler killed?”
“No. I don’t believe that he did.”
Blake stood. “Your Honor, what is the point of all this? The witness has repeatedly and emphatically denied every accusation that she has any knowledge relevant to the criminal case here. Mr. Riley has not presented any documentary evidence that contradicts her denials.”
Judge Lasky nodded, turning to Duncan. “I must agree, Mr. Riley. If your only goal here is to ask accusatory questions while getting blanket denials in response, then your mission is accomplished and the court’s patience is at an end. Do you have any evidence to present to this witness that will actually establish that she has taken part in a fraud upon this court?”
“I believe I have already laid the groundwork for establishing that, Your Honor,” Duncan said. “Ms. Roth’s answers have been untruthful in the extreme.”
“She has denied your accusations in no uncertain terms,” Lasky replied. “Unless you have some evidence that establishes she is not being truthful, Ms. Roth is excused.”
“I do have evidence, Your Honor,” Duncan said. “I have one more witness to call.”